KAMALA BAI AMMAL Vs. THEETHACHARI ALIAS APPU RAO

JUDGEMENT

(1.) THE question in this appeal turns upon the construction of Section 4, Claue (h) of Madras Act IV [4] of 1938. One Ranga Rao executed a deed of mortgage dated 8 -12 -1930, for a sum of Rs. 2750 in favour of his daughter Seethammal, In execution of a money decree obtained by a creditor against Ranga Rao, the mortgaged properties were purchased by one Krishna Rao, subject to the suit mortgage. Krishna Rao in his turn sold the equity of redemption in the properties to the sister -in -law, defendant 1. Defendant 2, the husband of defendant 1, is a subsequent mortgagee. Defendants 3 and 4 are the lessees of the properties. Defendant 5 is a sub -mortgagee from Seethammal. See -thanamal died on 24 -8 -1945. The plaintiff, as her heir, filed O. S. No. 195 on the file of the Court of the Subordinate Judge of Coimbatore for recovery of a sum of RS. 7389 -2 -8 the amount due under the mortgage bond. The defendants contended that the suit mortgage was not supported by consideration, that it was bad for non -joinder of parties, that the suit document was taken by the plaintiff benami in the name of his wife and that defendant 1 was entitled to a scaling down of the decree. The learned Sub -ordinate Judge held against the defendants on all the points. He held that as the mortgagee was a woman on 1 -10 -1937, the debt due to her was exempt from the operation of the Act. In the result he gave a preliminary decree for the recovery of the suit amount. Defendant 1 has preferred the above appeal.

(2.) THE learned counsel for the appellant argued that Section 4 (h), Madras Agriculturists Relief Act, does not apply to the suit debt as the plaintiff is not a woman at the time the debt is sought to be enforced, though the creditor was a woman on 1 -10 -1937. The relevant provisions may be extracted: 'Section 3 (iii) - -'debt' means any liability in cash or kind, whether secured or unsecured, due from an agriculturist, whether payable under a decree or order of a civil or revenue Court or otherwise, but does not include rent as defined in Clause (iv), or 'kanartham' asdefined in Section 3 (1) (i), Malabar Tenancy Act, 1929;

(3.) WE shall now proceed to consider the decisions cited. The application of Section 4 (h) of the Act was first considered in Ramaswami v. Alagayammal, I. L. R. (1940) Mad. 688 : A. I. R. 1940 Mad 421. The creditor in that case, being a woman, claimed the benefit of the exemption under Section 4 (h) of the Act. Besides the decree debt sought to be scaled down, she was entitled to a half share in a mortgage debt from another person, but had no other property, and the principal amount of those debts did not exceed Rs. 3000. It was argued for the debtor that the creditor was not entitled to the exemption claimed as she owned, on the material date, other property, namely, half a share in the mortgage debt referred to. The learned Judges held that debts due from an agriculturist to a woman on 1 -10 -1937 were not to be scaled down under the Act if on that date the principal amount of such debts did not exceed Rs. 3000 and the woman did not own any property other than such debts apart from her personal belongings. In the course of the judgment the following observations were made: 'There is nothing to indicate that the words 'any debt or debts in Clause (h) refer to the debt or debts in respect of which the application for scaling down has been made. On the other hand, the opening words of the section, 'Nothing in this Act shall affect debts and liabilities of an agriculturist falling under the following heads' show that the exemption relates to certain classes of debts and bas no particular reference to the debt sought to be scaled down. The exemption under Section 4 (h), as we understand the provision, covers a particular category of debts, limited in regard to the nature and extent, while insisting, as a condition of its application, that the creditor woman should not have owned on the date specified any other property, that is to say, property not falling under that category apart from property excluded by the explanation.'